In the Name of Diversity

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Civil Rights Practice Group, was recorded on Wednesday, March 11, 2020, during a live teleforum conference call held exclusively for Federalist Society members.        

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled, "In the Name of Diversity." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are very fortunate to have with us Mr. Daniel Ortner, who is an Attorney with the Pacific Legal Foundation. After our speaker gives his remarks, we will have time for your questions.

 

Thank you very much for sharing with us today. Daniel, I pass the baton to you.

 

Daniel Ortner:  Thank you so much. I'm excited to be talking about this very important topic. I'm going to be focusing my remarks on what's been happening at the University of California in particular because that's the one I've studied most carefully, and I've done a lot of public record request to get information from them.

 

But it's worth noting up front that what's happening there is slowly filtering into other states as well. I'm aware of a couple of other states that are considering similar diversity policies and requiring diversity statements down the road. It also applies to all schools in California, the whole system of universities in California.

 

With that, I want to begin back in one of the most infamous, horrific events of the University of California's history, which is that in 1949, the University of California led the way in establishing loyalty oaths where faculty members were required to take -- to gain or keep their jobs, faculty members were required to swear that they would support the U.S. Constitution and they did not affiliate with the Communist party or other subversive groups.

 

And ultimately, 26 faculty members lost their jobs because they were unwilling to sign these oaths, and then 37 others resigned in protest against these loyalty oaths. Fortunately, the use of such loyalty oaths was soundly rejected both in the court of public opinion and in courts all over the country, including the U.S. Supreme Court and the California Supreme Court.

 

In the decision of Keyishian v. Board of Regents of University of New York, the Supreme Court declared that these kind of oaths are unconstitutional because our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. And that decision really established the value of academic freedom as a First Amendment concern, established that states cannot impose loyalty oaths on academics or others.

 

Today, it would be, fortunately, unheard of and utterly unacceptable to fire a professor because that professor is a member of the Communist party or a progressive or any other political affiliation. And academic freedom protects the right of faculty members to hold and communicate controversial ideas free from discipline.

 

But unfortunately, a thesis is that a type of loyalty oath is making its return, once again spearheaded by the University of California in the form of a contribution to diversity statement. And unfortunately, this is all being done in the name of diversity. It's a bit ironic that in the name of diversity, there's a return to policies which are empathetical to intellectual diversity.

 

These policies are also a tool for imposing racial and gender discrimination. In California in particular, there's Proposition 209 which is a state constitutional amendment which bars the consideration of affirmative action -- affirmative action policies, the consideration of race in hiring and especially focused on state universities. And these statements have been used as a backdoor way to get around Prop 209 to engage in discrimination on the basis of race and gender.

 

So it's actually professors at the University of California are the ones sounding the alarm about this issue. Back in December, Abigail Thompson, who's a professor of mathematics and department chair at the University of California Davis and she's also very influential in the American Mathematics Society, wrote a very scathing opinion piece in the Wall Street Journal calling out the university's ideological litmus test for job applicants.

 

She made the analogy to loyalty oaths from the 1950s and 1960s, and she also wrote something very similar in the Notices of the American Mathematical Association just a month before that. The University responded that Professor Thompson arguing that diversity statements are merely about determining a candidate's readiness and potential for serving the diverse population of students in California and that they're not an ideological litmus test because candidates are evaluated holistically, and this is just one component that they're looking at.

 

So who is actually right about what UC Davis is doing? And then if Abigail Thompson's assessment is accurate, what legal problems do UC Davis's actions raise? So to assess those questions, I want to go back to the origins of these diversity statements or of the evaluation of contributions to diversity.

 

Back in 2005, the University of California first introduced an early version of consideration of a faculty member's contribution to diversity. But this policy began largely unobjectionably, very modestly at first. The stated goal was that basically, diversity would be considered as one factor among many when evaluating a faculty. It was to ensure that teaching, research, professional, and public service contributions that promote diversity and equal opportunity are to be encouraged and given recognition in the evaluation of the candidate's qualifications.

 

So basically, a faculty member that made an exceptional contribution to diversity, such as through mentoring minority students or taking the lead in piloting diversity initiatives, would receive credits for that in the evaluation process. It was to ensure that things that professors do that are good for the community are not underappreciated that aren't obviously teaching or research contributions, and so there's nothing really -- it's difficult to see anything wrong or sinister about taking these kinds of contributions into account to some degree.

 

From 2005 to about 2015, use of these contributions or these statements rest on the foundation that they were not going to be a fourth leg of the evaluation. They were just one factor to be considered. You didn't have to have a contribution to diversity. There was no mandate that every applicant fill out a diversity statement, no suggestion that a candidate without contributions to diversity would be rejected. It was just a plus factor and not as a separate and discreet hiring requirement.

 

That's still what is actually codified in the policy manuals at the University of California. So officially, system-wide, nothing has changed. The Board of Regents has not approved a change. But what's actually happening at the universities today is dramatically different from that.

 

First of all, each and every UC campus requires faculty applicants to submit a separate diversity statement. The only exceptions there is that UC Santa Barbara for a long time did not require them, but they have shifted in the past couple of months, really, to requiring them. And UC Berkeley does not technically require every single department to use them. It is expected they will, unless they provide a reason that they are not requiring them up front. But other than that, every single UC campus requires them as part of your application.

 

What's actually happening is even more dramatic than that. At schools like UC Davis, UC Berkeley, and UC Santa Cruz in particular, there's this initiative called the Advancing Faculty Diversity Initiative where the University of California receives about $2 million a year from the California Legislature to develop diversity and enhancing programs. And as part of this, these schools have been dramatically expanding the way that these diversity statements are used.

 

First, this began in UC Berkeley in 2017, then UC Davis in 2018-2019 and UC Santa Cruz also. And in these searches, the best example of this is UC Davis in 2018-2019 did an open discipline search where the primary consideration was the ability of applicants to "address the needs of African-American, Latino, Chicano, Hispanic, and Native American students or communities."

 

And as part of these searches, the search committees were hand-picked to include only those faculty members that were most sympathetic to the efforts of these diversity initiatives. And most importantly, the biggest change was the way these diversity statements were evaluated. The UC Davis's vice chancellor explained that this change was a "game changer." In these searches, it is the candidate's diversity statement that is considered first. And only those who submit persuasive and inspiring statements can advance for complete consideration.

 

So basically, these statements morph from being a plus factor to being the only threshold requirement that would matter. If you didn't get a passing score on these statements, you would not be looked at in any way, shape, or form based on your merits, your teaching, anything else in your application. These statements were it.

 

The rubrics that were developed were particularly egregious and are still -- they're still using the same rubric. They're very clear that this is meant to be an ideological screening test. One example is that there's a category for awareness: how aware are you of diversity issues? And the rubrics say that any applicant who "provides a reason for not considering diversity in hiring" or who "sees it as antithetical to academic freedom or the university's research mission" would receive a failing score, a 1 or a 2 out of 5 on this component of the application.

 

So whatever the candidate's other merits, holding those views would make advancement to be on the diversity screening unlikely or nearly impossible. In other words, if you share the views of Supreme Court Justice Clarence Thomas that programs like affirmative action are ultimately harmful to minorities because they create mismatch or foster the perception that minorities cannot succeed without government intervention, if you expressed any of that in your diversity statement or even any hesitation about balancing the need for academic freedom with the focus on diversity, then you will not -- almost certainly not be hired in one of these searches.

 

You would either have to cloak your beliefs or be rejected based on your viewpoint. I was -- and have been -- continue to be very curious to see how these statements have been evaluated and practiced. The University of California schools have been very resistant to releasing much data about this question. But fortunately, the schools publish a report to the legislator reporting on these diversity initiatives, and so the results that have come out of that have been particularly striking.

 

UC Berkeley, their pilot search that used diversity statements as a threshold requirement, there were for one search 893 qualified applicants. And of those applicants, 679 of them were eliminated solely because their diversity statements were deemed inadequate. In other words, UC Berkeley rejected 76 percent of qualified applicants without even considering their teaching skills or their publication history or their potential for academic excellence or their ability to contribute to their field.

 

These applicants could well have been the next Albert Einstein, the next Jonas Salk, or they might've been outstanding and innovative educators who would make a significant difference in their students' lives. But there's no way the university would have known that. They didn't even look past the diversity statement.

 

UC Davis has reported informally similar results. They're saying that in some departments, up to 50 percent of applicants were eliminated just based on the diversity statement. So this is a significant concern raising the sector of ideological litmus tests.

 

There's another concern related to the way these diversity statements are used which is the potential for discrimination based on the scholarship that one has done. Under the standards used by the UC schools, any applicants whose research "contributes to understanding the barrier facing women and minorities in academic disciplines or addresses topics like health disparities, educational access and achievement, political engagement, economic justice, social mobility, and civil and human rights would receive credit for their contribution to diversity." And I think most of those on the call would recognize that that terminology is highly weighted -- highly loaded.

 

A topic like economic justice is not a politically neutral, ideologically neutral standard. It is likely looking for particular types of research, and those that do that type of research will be favored in hiring. It's not hard to see how that will result in favoritism to certain kinds of viewpoints. For instance, imagine two prospective law professors. One publishes an article strongly supporting affirmative action programs in the Harvard Law Review. Another publishes in the Yale Law Review arguing that affirmative actions are harmful because they create mismatch or are incompatible with the ideas of the Equal Protection Clause.

 

Even though those articles are published in journals of nearly identical rank, the first professor would get a high score on his contribution to diversity, and the second professor would likely receive low marks. In a highly competitive academic marketplace, this process of getting additional credit to certain kinds of research will likely skew academia even further away from conservative ideas and intellectual diversity. And that's another serious problem.

 

The third problem that I wanted to highlight is the issue of race discrimination and how these statements potentially can be used to open the door for racial and gender discrimination. As I mentioned, in 1996 the voters in California enacted Prop 209. This was directly intended to be a rebuke to the affirmative action and diversity programs that had festered at the University of California.

 

This is actually the most attention it was given specifically to the University of California. But unfortunately, instead of reforming their ways, the University of California almost immediately set to undermine the spirit of Prop 209 by continuing to take race and gender into account in invisible or subtle ways.

 

I don't think anyone shared an allusion that race and gender are not being taken into account in everyday searches at the University of California. Consider the fact that every department establishes targets for the number of women and minorities that it'll hire. Search committees are expressly required to engage in targeted outreach for the sole aim of diversifying the racial and gender composition of the applicant pool.

 

For instance, they are expected to make outreach to historically black colleges and universities, but unsurprisingly, no similar attempt of outreach is made to underprivileged students at colleges and universities in the South or Appalachia. And most schools, the UC system at least, a euphemistically named equity advisor is assigned to each search and has the authority to scrutinize the applicant pool. And if the pool is not diverse enough, the search will continue until it is, or the position will not be filled or rolled over to a subsequent year.

 

So there's a clear race and gender screening happening in most searches, but until the diversity and equity statements were introduced, this was done very subtly because race and gender was mostly masked for at least part of the evaluation process. But the use of diversity statements has allowed for open recognition of race and gender. In their diversity statements, applicants are encouraged to describe their "life experiences" and to explain how those experiences give them "an understanding of the barriers facing women and domestic minorities."

 

In other words, applicants are rewarded for discussing their own race or their ethnicity or their gender as part of these statements. And if you look at the model diversity statements provided to faculty members serving on search committees, like the one at UC Davis, they expressly -- these model statements actually disclose the other applicants race or ethnicity. The first sentence of one of them is as a Hispanic-American, or as a Mexican American, or as a woman of color, these are exactly the first -- the things that are being presented to the search committee as a model diversity statement.

 

The results of this, I think, are what you would expect or even more dramatic than you'd expect. The US Davis pilot program that I mentioned earlier, they reported the results just back in December 2019 to the California Legislature. And first of all, it's worth noting that the way they measured success was only two things. One is how many underrepresented minorities applied, became finalists, and were hired? And that's defined as blacks, Hispanics, and Native Americans only. And two, how many women applied, became finalists, and were hired?

 

In other words, all of the talk about these efforts being for increasing the student wellness, the students of a faction, or increasing the diversity of thought or anything else like that, it completely belied by the fact that the only results they're looking at are racial and gender results of hiring.

 

The results of this program are, I think, truly shocking. They compared these searches to all other searches conducted at UC Davis in the year of 2018-2019. So in all the other searches, under 10 percent of the applicant pool were minorities, just about 5 percent of the finalists, and 2.3 percent of the ultimate hires were minorities.

 

But in the pilot searches, there's seven spots, nearly a third of the applicants were minorities, over 80 percent of the finalists, and a full 100 percent of those hired for these pilot searches were minorities. The results for female hires were also quite sharp. 87.5 percent of those hired through the pilot program were women, compared to 45.5 percent campus-wide, which 45.5 is pretty close to parity. 87.5 is clearly disproportionate.

 

Results like that do not happen just by chance, especially the 100 percent of those hired being minorities, the 80 percent of the finalists. And really that jump from a third of the applicants being minorities to 80 percent of the finalists, it's likely that much of that can be attributed to the diversity statements and to the screening that's happening there.

 

These results are being posted by UC Davis as a great success for these programs. They're going to continue to do similar things in the upcoming years and have gotten funding for more pilot programs at UC Davis and UC Santa Cruz in the upcoming searches. UC Santa Cruz right now, a third of the searches happening this year are using a very similar methodology. So this is seen as -- this display of racial and gender discrimination is seen as a big success for the diversity administrators and bureaucrats at UC Davis.

 

So that describes the situation, the problem that's happening at UC schools and I think spreading elsewhere as well. So if I’ve convinced you that this is a serious problem to intellectual diversity and to the idea of equal protection under the law, then the question is what legal challenges or what legal issues arise that could be brought against what UC Davis is doing?

 

So one minor argument could be that the UC schools are exceeding their mandate from the UC Board of Regents and going beyond what the policy manual contains, which in California law has the force of statute. But this argument is unlikely to have long term impact because the manual can just be changed, and other states continue to follow UC's lead. So I'm more interested in state or federal constitutional arguments that could result in long term change in California or nationwide.

 

So first, I want to talk about the First Amendment implications. So the First Amendment rights of faculty members is a subject of intense dispute, and there's a long lingering circuit split over this question. As the earlier cases about loyalty oaths show, when the state government or state officials attempt to interfere with faculty, the case law's very clear that there's an expansive vision of protection for First Amendment rights.

 

But unfortunately, the picture is a lot less clear when the right of individual faculty members and the rights of academic institutions clash. Courts, including the Supreme Court, have expressed a reluctance to interfere with the prerogatives of educational institutions, rightfully because of the concern of academic freedom. So courts have largely been very deferential to academic institutions.

 

The test that applies mostly is the Pickering test that's used for all public employees, which balances the public interest in having free and unhindered debate on matters of public importance were the employee's right to prevent speech that would impede proper performance of employee's duties. And so this has been a deferential test by and large, but if you look at the cases that have come out, most of them make clear that there is a distinction when you're talking about viewpoint discrimination.

 

Even though content-based restrictions are often made in this context, initiating of curriculum, the viewpoint discrimination has consistently been seen as particularly egregious and violative of the First Amendment. There's an additional wrinkle here, which is the Supreme Court's decision of Garcetti v. Ceballos in 2006, which essentially says that if a public employee is speaking pursuant to their official job duties, then the First Amendment does not apply. The Constitution does not protect them from discipline.

 

In the Garcetti decision, the Supreme Court actually noted concerns with academic freedom that if this decision was applied to professors, it would potentially eviscerate First Amendment rights. Justice Souter in his dissent focused on that concern. He noted that teachers necessarily speak and write pursuant to their official duties and that therefore the majority's opinion could have grave consequences for the protection of academic freedom.

 

In response, the majority recognized this concern and said that they are not going to resolve it in that case. They are going to punt and say we need not decide whether the analysis would apply to a case involving speech related scholarship and teaching. And so unsurprisingly, a very pointed circuit split has arisen.

 

The Seventh Circuit held that Garcetti essentially applied to almost everything professors do. They said that expression is a teacher's stock and trade and that therefore, it applies to teaching and service responsibilities. In sharp contrast, the Ninth Circuit rejected the application of Garcetti to professors. It concluded that since academic speech is a special concern of the First Amendment, its application would directly conflict with the important First Amendment values articulated by the Supreme Court.

 

And so in the Ninth Circuit, the Pickering test is clearly what applies. Garcetti is inapplicable completely to the academic setting. So there's that lingering dispute. There are other, I think, very interesting legal issues that are unsettled. What is the impact of the fact that the university is arguably engaging in viewpoint discrimination where in these rubrics, they are saying if you express the viewpoint that diversity programs are harmful or counterproductive or minorities are better without them, if you express that viewpoint, you are going to be penalized. If you express a contrary viewpoint, you will be rewarded. What is the impact of that?

 

There's, I think, a lot of interesting questions one could ask about how does one evaluate these kinds of dumb requirements that borderline or get close to being litmus tests or ideological screening requirements. I have an article up on SSN about this topic and trying to get published where I highlight certain factors I think should be taken into account.

 

For instance, how closely related is the diversity statement to the job requirements? What's happening, I think, here is that the university is trying to generalize a requirement that a faculty member be qualified to handle diverse students, but to take that to you have to prove your loyalty to the ideas the university's espousing, it's a universal requirement for all applicants. You're scrutinizing privately held ideas, and you have administrators increasingly doing the review, and you have this really intense holistic -- I'm sorry, intense threshold screening requirement instead of a holistic review.

 

And so those are all factors I point to suggesting that this should raise grave First Amendment concerns. It should be evaluated aggressively under strict scrutiny or an aggressive form of review because of the real danger that the use of these statements crosses into posing an ideological litmus test. So I will leave that. I'm sure there will be more questions about that, so I will leave that issue for now. I want to briefly, before I end, talk about equal protection as well and Prop 209.

 

So under -- first of all, Prop 209 in California, policies such as quotas, set-asides, and race and sex conscience goals are forbidden in higher education in California. And the California Supreme Court has interpreted Prop 209 quite broadly to apply to timetables, incentives for minority hiring, anything of that sort. But there are a couple of counter arguments universities would likely offer.

 

One is that they're only engaging in outreach to increase the pool of applicants. And some courts in California have found that to be permissible. But the response, I think, to that is that what the UC schools are doing goes far beyond that kind of outreach. They are making sure that certain racial composition is met in the pool, and they're very directly targeting minorities. And they are increasingly going far beyond what courts have upheld.

 

And then second is that I think the results that you see, some of the UC Davis results with 100 percent of the minority -- of the applicants being minorities, shows that favorable preferences are in fact being given and not just increased outreach to increase the pool, which does not account -- it accounted for the jump from 10 to 30 percent compared to searches but did not account for the jump to 80 or to 100 percent, which is not based on the pool but based on the methodology used by those screening applicants.

 

The university can also argue that it is required to engage in affirmative action under federal law and is therefore exempt from Prop 209. And there is some truth to that. The university is required to measure racial diversity in the workplace and to set goals for achieving a more representative work force. But the University of California is going far beyond anything required under federal law. Federal law just requires you to count and to set goals when there's a significant disparity.

 

And actually, interestingly, the university of California Davis's 2018 affirmative action plan shows that many of the departments in colleges at UC Davis that are a part of this pilot program are actually already adequately representative for many of the groups that the search is looking for in hiring. So they were already representative with Hispanics, for instance, in almost every department. And so there's no reason or excuse under federal law to justify this.

 

And then finally, federal Equal Protection law, this would be an Arlington Heights type of a case where there's a significant evidence of racial disparity in the outcome. And there's also clear evidence that the goal -- that the primary and significant purpose of what UC Davis is doing is to hire minorities, that it is directly aimed at specifically blacks, Hispanics, Chicanos, Native American, specific minority groups and that this is how success is being measured.

 

So there's, I think, significant evidence that under Arlington Heights, strict scrutiny should apply to the policy and there's -- the Supreme Court has been very limited when it allowed diversity to be a compelling interest. Really, it's only found that in higher education and in responding to past history of a de jure segregation. Otherwise, it has said no, just including diversity is not a compelling interest.

 

The university's goal of saying well, students are diverse, so the faculty needs to be diverse. That is highly unlikely to be seen as a compelling interest, and these programs are not tailored adequately to not -- for instance, you don't need to impose a direct litmus test or directly look at race in the statements. And so there's, I think, significant evidence of these programs would be found unconstitutional under the Equal Protection Clause, assuming that strict scrutiny applies to them.

 

So with that, I will open up for any questions.

 

Wesley Hodges:  Very good. Thank you so much, Daniel. Daniel, it looks like we do have two questions right out of the gate. Let's go to our first caller.  

 

Roger Clegg:  This is Roger Clegg at the Center for Equal Opportunity, and first of all, thank you very much, Daniel, for that great presentation. The only additional thing or additional problem that occurs to me with these is the extent to which prospective employees are going to be hired only if they are willing to engage in illegal acts. That is, they're saying that well, you know, in order to work for us, you have to be somebody that is willing to violate Proposition 209. Is that a fair characterization of what these diversity statements are saying?

 

Daniel Ortner:  There's a question that made me think about the First Amendment implications of whether the university can require a professor to implement programs like affirmative action that might be unlawful under state law. I think the case law suggests that yes, the university could require an applicant to administer its policies. It could require an applicant -- a professor to announce the students the diversity programs the university is engaged in, for instance. So I think they probably could require that.

 

I think what the University of California does which goes beyond that is require ideological conformity, require agreement of ideas not just of action. It's saying we don't just want professors to be willing to do the things we want them to do. For instance, they could require professors to do implicit bias training, however dubious the value of that is. They could say everyone who wants to teach here has to do implicit bias training.

 

But what they can't do, I think, is say yeah, and you have to agree with everything we say in that training, and you can't have your own ideas. You can't express your position to the contrary, and we're going to screen to make sure that you agree with us on these issues.

 

That's what, I think, the University of California is slipping into, and that's why I think it borders like the -- becomes like the loyalty oaths where it's not just requiring you to be on board or to not go against the policies, but it requires you to actually agree and actively champion their policies.

 

Roger Clegg:  Well, let me follow up with this question. And I think it's always helpful to put the shoe on the other foot when you're thinking about questions like this. And suppose that you had a university that was in the bad ‘ole days where it had long had an announced policy of refusing to hire African Americans. And they had had suffered legal penalties for that. They had been sued by the federal government, so forth and told in no uncertain terms that that was illegal, and they couldn't do that anymore.

 

And so one of the requirements when they hired people was look, we don’t want to get -- we don’t want to be breaking the law and getting penalized for that so we know there are a lot of people out there that don't like the fact that we're now hiring black faculty members or we're not -- or we're admitting black students, but that's just too bad.

 

We don't want to be hiring people to work here that are not going to follow the law. The fact that the focus is on actions rather than beliefs, we're not saying that you have to like it. You can believe ideologically whatever racist notions you want, but you have to act in a way that's consistent with the law because we, the university, are required to do that.

 

      Conversely, if you had a university that says we only want to hire people that are willing to break the law. It's hard to believe that the federal government would say that well, can't do anything about that. We can get an injunction against the university, but if they want to hire people, only people that are going to continue to violate the law, then it's -- I'm not a First Amendment expert, but that seems to me to be odd.

 

Daniel Ortner:  I think that the two levers the university could use -- let's say, your example of a professor who is racially -- someone who is a bigoted professor who wants to be hired or any other idea of that nature, there are two things that a university could use. One is A) in conduct. So if a professor -- if there's any evidence that a professor is engaging in any kind of discrimination in the classroom, in any way treating students differently based on race, of course, the university can take action based on that, and there's no suggestion in any of the First Amendment case law that that would be limited just because they're taking action based on the results of the action and not ideas being expressed.

 

      I think secondly would be evaluating based on scholarship, which is to say if a professor is engaging in faulty scholarship that promote very outdated, very false racial theories, then that could be evaluated based on the academic standards of the profession or that history work or that scientific research, and professors could be not hired or fired or penalized based on the quality of their research. It's unlikely that someone engaging in very shoddy, racially biased scholarship would get published in a good journal, that they're not going to have the academic metrics required to be hired at a university.

 

      And so I think both of those levers are available to the university. My argument would be that what the university here is doing, it goes beyond that when it slips into requiring ideological values, conformity, and agreement of ideas. And it's not even linked closely to the actual scholarly output that you're talking about mathematics professors being hired based on these diversity statements. You're not talking about someone who teaches on an area that is relevant to diversity issues. You're talking about a mathematics professor being required to espouse these ideas or not be hired.

 

And so I think that goes far beyond what is required by the norms of a profession or academic standards to be an universal requirement of all applicants regardless of their position, regardless of their role in the university. And that really is what resembles the loyalty oath controversy.  

 

Wesley Hodges:  Let's go to our next caller.  

 

Caller 2:  Yes. My question basically is if you're not allowed to do prayer in school and you are what was considered the majority race, and you're in a class that now considers that that race is not fair to the rest of the races, how do you stop the discrimination? And yet the Court says that they're only going to listen to strict scrutiny.

 

And I don't understand how it can be so strict as saying that a particular religion or religious view if expressed is unconstitutional and yet say that it can't be monitoring other forms such as gender discrimination or gender views that don't necessarily conform with all of the students' views in that class. And maybe even their grades get downgraded because they don’t necessarily agree with other students that are more liberal in that class. Is the Supreme Court going to listen to such cases or they're just going to set them aside and let the schools decide how they're going to deal with it?

 

Daniel Ortner:  Not sure I fully understood your question. Could you rephrase? Thank you.

 

Caller 2:  So what I'm saying is is if you have a particular person that has a particular religious point of view and they try to express that in today's public universities and even private colleges, you're told that you can't express that because it's unconstitutional to force your views or your prayers on other people. However, if somebody in the more liberal group says well, these are my views on gender and it's extremely important to me, and one of the definitions of religion is what is most important to you, but that person is allowed to express that or they're allowed to express that they are a minority and they feel that "white power" has been tough on them.

 

But if the white person says anything in defense, well, lots of whites have done very positive things in history and that's benefited everyone, how much involvement does the Supreme Court going to have in making decisions on whether they can say those things or not? Or is it left just to the public university to decide well, we won't allow school prayer and we won't allow religious talk by certain individuals, but we will allow more liberal views to be espoused by other people, maybe people that support socialism, for instance.

 

Daniel Ortner:  I think maybe put aside the question of official prayer or official religious activity, which is a very different topic. Religious freedom scholars can talk about those separations of church and state, but specifically over the question of expression, religious expression or political expression or expression about all kinds of topics would be considered protected speech for the students, university, and for the professors as well to talk about matters of public concern.

 

      Under the Pickering standard that I mentioned for professors, the protection is somewhat more limited than for students. So a professor cannot be disrupting the job, you cannot be going against the policies of the institution. There are limits to a professor's ability to express themselves, especially in the classroom.

 

The cases looking at professor speech tend to be very favorable to the university when the speech is in the classroom in particular. Although, some cases have found that there is a right -- a professor does have a right to express themselves as they wish. The majority trend is to say no if you're in the classroom, you're doing your job, and you can easily limit the expression of a professor in the classroom.

 

      On the other hand, when you get to the areas like research and scholarship, which is much more personally held by the professor. They're not speaking with a hat of a university official when they're speaking in their research. They're clearly engaging in their own private research, expressing their own thoughts. Courts have been much more protective of the rights of professors to express themselves, and the universities cannot punish them based on the viewpoint that is being expressed in their scholarship.

 

      They can engage in neutral evaluation criteria, like looking at the academic value and merits, applying widely held disciplinary norms of the profession, but they cannot discriminate based on viewpoint. So there even for professors, there's protective case law with regard to scholarship and external speech and also speech like if a professor goes on Twitter and says something controversial. That has been seen as protective speech. The university cannot go and punish them for their private speech expressed outside of the university altogether.

 

Wesley Hodges:  Let's go ahead and flip the switch and go to our next question.

 

George Lanoue:  Thank you. This is George Lanoue from the University of Maryland Baltimore County. I appreciate your discussion of what is going to be a growing problem in higher education. I wonder was there substantial debate on various campuses among the faculty, and has AAUP taken a position on this kind of pre-job ideological screening?

 

Daniel Ortner:  So to answer your question about the substantial debate, I think the answer is largely no for a couple of reasons. One is that University of California, as I mentioned, they're using these advancing faculty diversity grants from the California Legislature to implement these policies. And they're doing so in a way that bypasses faculty governments so that they don't actually need to go to the faculty to get approval for these programs. They're done from the university office of the president, which is the central office of the UC system, directly to the institutions and to the departments that are participating without the need for the faculty senate, the faculty governance to have any say in the matter.

 

      So there's been limited debate because of the way that University of California in particular has implemented these requirements. There are a couple things I mentioned. One, Abigail Thompson, when she wrote her piece in the American Mathematics Society Journal -- I'm sorry, American Mathematics Association Journal and also in her Wall Street Journal piece, there was an outcry against her.

 

A professor tried to get signatories to try and get her disciplined, and there was a backlash to that of professors standing up for her, a wide variety of professors, some of whom agree with the policies but said no, it's wrong to try to punish someone for expressing their concerns. We need to have free academic thought on the university, freedom of thought and freedom of expression on the university campus. So I was very encouraged to see professors standing up in support of Abigail Thompson.

 

      The other thing I'd mentioned is that right now at UC Davis, there is a debate going on in the faculty senate over diversity statements. A professor there introduced a resolution against the use of diversity statements, and then the administration introduced a counter resolution in favor of them saying that they're a valuable part of a holistic evaluation.

 

      So there is ongoing debate right now at UC Davis. The university has come out very strongly in favor of these statements, and so I think there likely going to be some support, although, maybe tepid support at that. There is debate happening -- limited amount of debate, partially because of the procedural mechanism that the university used to bypass the faculty. And that's some of their other concern. More and more things are being shifted to administrators, to bureaucrats.

 

      The statistic that really is striking is that in 2018, the economists found that there are 175 employees at the University California Berkeley who are diversity officials. That's their job is to work on diversity issues. These are not faculty members. These are individuals that their goal is to increase diversity. And so increasingly, the university bureaucrats have more and more power and influence, and they're taking over the process, these searches.

 

And so that's a real danger, moving away from professors who are likely to be protective of academic freedom, likely to be protective of free speech rights, and likely to implement norms, objective standards of their profession, and moving more and more to bureaucrats who don’t really have concern for free speech in the same way and are less likely to want to protect the rights of faculty members. And so that's a real concern on that, that shift in power that's ongoing.

 

George Lanoue:  Thank you. What about AAUP? Have they entered into this at all?

 

Daniel Ortner:  I'm not aware of AAUP actually taking a stance thus far on this topic.

 

George Lanoue:  It would seem highly relevant.

 

Daniel Ortner:  Yes, I agree. I'm not aware of anything that they have said about the topic.

 

Wesley Hodges:  Next caller, we are flipping the switch for you.

 

Mitchell Keeter (sp):  Yeah, hi. This is Mitchell Keeter. My question concerns the case law that discusses academic freedom because although I haven't read them, I would assume it's not a doctrine that gives universities absolute discretion, but rather, it is going to foster a holistic expression of ideas including unpopular ones. So it would seem to me that if we actually look at the meat of the doctrine, it would not be possible for these schools to assert that as a defense because they are not in any way implementing those principles and are in fact violating. Is there a way to -- even if it's not affirmative viewpoint discrimination, it's simply not a valid application of academic freedom that could justify a challenge -- that could prevent a challenge to it.

 

Daniel Ortner:  Yeah. If you look at the cases regarding academic freedom, specifically when you get ones that professors are butting up against universities. Let's say a tenure dispute or hiring disputes, courts have typically been very differential to the academic institutions because they've said we can't really second guess academic judgments about what kind of scholarship is needed, what values the university wants to promote, what direction they want to go in with their research or teaching endeavors.

 

      So there's a high degree of deference. The reason I mentioned viewpoint discrimination specifically is that that's been seen as a point of divergence where at that point, when the university is saying we don't like your viewpoint that you're expressing, then courts have been more willing to scrutinize and evaluate carefully.

 

      An example is the university absolutely can say we want to hire a professor in early American history, Colonial period, Revolutionary era period of U.S. history. And if someone is not qualified for that, let's say their research is on the Civil War or the Progressive movement, then they're not going to be hired for that position, and that's absolutely okay. Universities do that kind of hiring distinction all the time.

 

      I think when you then go more specifically though into the viewpoint that is expressed, I don't believe the university can say well, we only want a professor who is going to be highly critical of Thomas Jefferson. If you have said good things about Jefferson, because he is a slave owner, you can't be hired. There aren't many cases dealing with that kind of granularity or specificity, but my sense of it is that that would be viewpoint discrimination. That would be unconstitutional.

                                                          

      There's a thin line between those two things, but courts have traditionally, I think, seen that distinction, and what the University of California is doing, especially with the rubric that they're using where if certain things are expressed, you cannot be hired or if your scholarship is a certain direction, you can't be hired, that crosses the line or should cross the line into the forbidden category of evaluative criteria.

 

Wesley Hodges:  Let's go ahead and go to our next caller.

 

      Daniel, do you have anything you'd like to cover in more detail or jump into before we get to our closing comments?

 

Daniel Ortner:  Sure. One more thing I wanted to mention briefly, which is there's a real danger of tendency in universities and elsewhere. One thing that's happening here is that universities are arguing well, if a professor is not onboard with these programs, if a professor is not 100 percent committed to equity and inclusion and diversity the way we see it, then students are not going to be able to be in that classroom. They're going to be offended. They're not going to feel supported. It's going to harm them.

 

      So I think I just want to call that out in particularly as a real danger of what the universities are doing here. They're essentially equating thoughts, ideas with harmful action, that students can't handle being in a classroom with a professor who sees things differently than them. And that's really dangerous. That is completely empathetical to the nature of the academy, of the nature of academic freedom, of the nature of the university as a place where people can have different ideas, contesting and debating and deliberating and coming to a truth.

 

      So I think that that's a particular danger with what the university is doing, is that that mentality is going to take hold. That if a professor disagrees with affirmative action programs, let's say, then they're not going to be able to handle diverse students. You see that at universities in California and elsewhere, that kind of thinking. Feelings are protests are going to set in if a professor disagreed, and universities need to be pushed back and said no, that's not right. You can have difference of ideas. You can have a professor who's written against affirmative action and yet can teach minority students without any problems and can do so effectively and do so well.

 

      So I think that that is a real danger that needs to be vocally pushed back on.

 

Wesley Hodges:  Wonderful. Well, thank you so much, Daniel. Do you have any closing thoughts before we end the call today?

 

Daniel Ortner:  Sure. I just would say what's happening in California really is I think pretty dramatic, the fact that 76 percent of applicants in one search were rejected without even looking at their research or their academic quality. The fact that 100 percent hired for this one search at Davis were minorities. This is not happening by chance, and it is going to be spreading, going to be adopted by additional schools if University of California's not stopped.

 

And it's really ironic that in the name of diversity, there's this effort that is really stifling intellectual diversity, saying that if you don't agree with us, you are not welcome to teach here. And I really hope that we will continue to see push back and that the University of California will be stopped, and other schools will not follow its lead down this really dangerous path of requiring these ideological litmus tests. So I'm hoping that they can be stopped.

 

Wesley Hodges:  Very good. Well, Daniel, on behalf of The Federalist Society and our audience today, I want to thank you for the benefit of your valuable time and expertise. We really have appreciated this hour, and we thank you for your time and knowledge. We welcome all listener feedback by email at [email protected]. Thank you all for joining us for this call. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.